Anabolic Steroids and the Athlete: The Legal Issues

Anabolic steroids are classified as controlled substances under U.S. federal law and the laws of many states. An alleged major East Coast distributor was recently arrested and a stockpile of anabolic pharmaceuticals was reportedly recovered pursuant to a search of his residence. Further police investigations are being conducted, and other athletes are being arrested. Since the non-medical possession or sale of anabolic steroids is illegal, strength athletes must not only consider the possible health risks but also the potential legal consequences of involvement. Many athletes who self-administer anabolics have no clue as to what might happen if they were to be caught by law enforcement. Whether you are merely curious about anabolics or you are presently using and/or selling them, I invite you to carefully consider the material presented here. Perhaps you will choose to stay natural or become “drug-free” (always the safest bet, medically andlegally!). If not, at least you will know the legal risks you are facing and what to do if you find yourself in the unfortunate and serious situation of an investigation or arrest. Obviously, the best time to read this material is before you are arrested and prosecuted.

Regarding my own background, I received a Bachelor’s degree in psychology in 1981. After attending law school on a full academic scholarship, I served as a criminal prosecutor in New York from 1984 to 1989. Since then I have diligently defended the rights of people accused of activities classified as illegal, which in New York state and U.S. federal courts includes the possession and sale of anabolic steroids. My law firm, Collins, McDonald & Gann, is a criminal defense firm with partners admitted to practice in the New York and Maryland state courts, the Federal Courts of the Eastern and Southern Districts of New York, the U.S. Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit, the Court of Appeals for the Armed Services and the United States Supreme Court. I am an officer or active member in numerous criminal bar associations and frequently lecture on criminal defense to groups of other attorneys. I have met with state legislators in Albany, New York, and members of the United States Congress in Washington, D.C. to discuss how our laws may be improved. I have examined our anabolic steroid laws and I am familiar with the body of medical literature concerning these substances. I have spoken at length with numerous steroid users and have personally observed the effects of anabolic steroid use on hundreds of athletes. I am a former competitive bodybuilder and certified personal trainer with over twenty years of lifting experience (recently bench-pressing 405 lbs. for 5 repetitions).

This article presents some general principles in answer to a few of the most commonly asked questions concerning steroid prosecutions of athletes. For further general information concerning arrests, including, for example, the consequences of not being read Miranda warnings, please see our law firm’s web site (which has a section devoted to this general topic) if you have been arrested.

How am I most likely to get arrested for steroids?

Probably for selling them to someone who has his own legal problems and is secretly cooperating with law enforcement. You might get a call from an old gym acquaintance asking if you can get him a few vials of steroids. A meeting will be arranged, your old pal will bring along an undercover cop, and you’ll be arrested on the spot or after a few further deals.

Of course, anabolic steroid distribution is investigated in a variety of other ways. For example, monitoring news groups and chat rooms on the Internet has become a common approach of federal agents. Trying to sell or buy steroids over the Internet can be an excellent way of getting oneself arrested. It is always best to assume that anyone looking for steroids on the Internet is an undercover police agent. Federal Postal inspectors also monitor the U.S. mails. Suspicious packages coming from overseas or Mexico can be examined. Among domestic parcels, those from California and the Southwest to sites on the East Coast reportedly have a higher probability of attracting attention. Once suspicion is aroused, inspectors will investigate records of prior packages involving the points of origin or destination. If illegal drugs are found in the mail, the U.S. Postal inspectors will often arrange a “controlled delivery” of the package to the designated recipient. If the package is accepted, agents will immediately enter with a search warrant to look for additional drugs. Obviously, sending or receiving anabolics through the mail is risky business.

What are my chances of being arrested just for personal use possession?

While most steroid investigations by law enforcement target sellers, either big-time or, lately, even small-time, arrests for personal possession do occur. Often, these arrests arise out of car stops for traffic violations and the steroids are found during a search of the car. For example, I recently defended a case where a police officer found a few syringes after stopping my client for speeding and discovering he had a suspended driver’s license. In New York, the possession of hypodermic instruments is a misdemeanor, and my client was arrested on the spot. Fortunately for the client, the officer overlooked a hefty stash of anabolics which was more carefully concealed. While the vast majority of users probably don’t get caught, you could be one of the unlucky few. Those who do get caught can suffer serious consequences. The consequences of an arrest include being handcuffed, fingerprinted, and hauled before a judge, while the effects of a criminal conviction may include preventing or interfering with future employment opportunities in many fields such as law enforcement.

If you are arrested for possessing (or selling!) anabolic steroids, the best advice is to remain silent, ask for the opportunity to contact a lawyer immediately, and answer no questions until you speak with him or her. Once you request a lawyer and refuse to talk to the police without one, the police are legally prohibited from questioning you further.

What happens after the arrest?

After the arrest processing by police or other law enforcement agents, the next step is generally a court arraignment at which the judge or magistrate will provide your attorney with a copy of the charges against you, and decide whether bail should be set. The purpose of bail is for the judge to help ensure that the accused comes back to court. Whether bail is set depends upon numerous factors, including the seriousness of the charges, risk of flight, prior record of the accused, etc. If an unaffordable bail is set, you could remain in a detention facility while awaiting the resolution of your case. An experienced criminal lawyer can argue against the setting of bail for you.

Of course, a detailed explanation of the progress of a criminal case in state or federal court is beyond the scope of this site, and it is strongly suggested that you consult directly with a criminal defense attorney if you are being investigated or have been charged with a crime.

What federal laws make anabolic steroids illegal for athletes?

In the mid-1980’s, media reports of the increasing use of anabolic steroids in sports came to the attention of the U.S. government. Between 1988 and 1990, Congressional hearings were held to determine whether the Controlled Substances Act should be amended to include anabolic steroids along with more serious drugs like cocaine and heroin. The majority of witnesses who testified, including medical professionals and representatives of regulatory agencies (including the FDA, the DEA and the National Institute on Drug Abuse) recommended against the proposed amendment to the law. Even the American Medical Association repeatedly and vehemently opposed it, maintaining that steroid abuse does not lead to the physical or psychological dependence required for scheduling under the Controlled Substances Act. (The AMA recommended education, not criminalization, to combat steroid abuse.)

Nevertheless, ignoring these experts, Congress scheduled steroids as Schedule III controlled substances under Title 21 of the United States Code, which regulates Food and Drugs. The legislation was called the “Anabolic Steroids Control Act of 1990. The law applies in every federal court across the country. It places steroids in the same legal class as amphetamines, methamphetamines, opium and morphine. Simple possession of any Schedule III substance is a federal offense punishable by up to one year in prison and/or a minimum fine of $1,000. Simple possession by a person with a previous conviction for certain offenses, including any drug or narcotic crimes, must get imprisonment of at least 15 days and up to two years, and a minimum fine of $2,500. Individuals with two or more such previous convictions face imprisonment of not less than 90 days but not more than three years, and a minimum fine of $5,000, just for simply possessing. Selling steroids, or possessing them with intent to sell, is a federal felony. An individual who sellssteroids, or possesses with intent to sell, is punishable by up tofive years in prison (with at least two additional years of supervised release) and/or a $250,000 fine. An individual who commits such a violation after a prior conviction for a drug offense faces up toten years imprisonment (with at least four additional years of special parole) and/or increased fines.

Are steroids also illegal under state laws?

During 1989 and 1990, many states reclassified anabolic steroids to become controlled substances under state law. A 1991 survey of anabolic steroid state legislation found that approximately twenty-two states (Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, South Dakota, Tennessee, and Texas) had tightened control over steroids in the preceding two years. State laws differ as to the classification level for anabolic steroids, providing for a wide range of penalties. The states also differ in their approach to controlling anabolics. Some, such as Arizona, California, New Mexico, Texas and Michigan, require the posting of notices designed for public education as to the dangers of illegal use. Further, Delaware, Louisiana, Michigan, Nebraska, Oklahoma, Tennessee, and Texas have promulgated rules as to the prescription of anabolic steroids, warning practitioners against dispensation for non-medical use.

In New York State, the Public Health Law classifies anabolic steroids as controlled substances. Possession of even a small quantity of a controlled substance can be prosecuted as a class “A” misdemeanor criminal offense under the Penal Law, punishable by up to one year in jail (although few first-time offenders are sentenced to jail time). Sale of anabolic steroids is a class “D” felony in New York, regardless of the quantity sold. In New York, “sell” is defined to include simply giving away as well as the act of offering or agreeing to sell. Sale of steroids is punishable by up to seven years in prison. Even gainfully employed, first-time offenders in many parts of New York State can serve some jail time, be placed on five years of supervision by the local probation department, and suffer the lifelong stigma of a felony drug sale conviction.

Will the police try to get me to “cooperate” with them?

People who get arrested for controlled substances are often pressured to work with the agents who arrested them or with other law enforcement authorities to assist in the identification, investigation, arrest and prosecution of others involved in criminal activity. Known to law enforcement as “confidential informants” (but to their former friends and associates as “rats” and “snitches”), they cooperate in return for more lenient plea or sentence bargains. It is not uncommon for the police or federal agents to squeeze the many “small fish” they arrest into giving up their sources, leading to the arrests of bigger fish who, in turn, are squeezed to give up their sources. Whether the police seek to recruit a person as an informant depends upon a combination of many factors. Deciding whether it is something an arrested person should consider doing requires a risk-to-benefit analysis and extensive consultation with an experienced criminal lawyer.

What is police entrapment?

Simply put, entrapment refers to a legal defense where a person commits a crime solely because he was actively pressured by the police to do it. Each state has its own statutes and case law dealing with this issue. Under the New York state law, for example, entrapment is an affirmative defense when a person is pressured by the police to commit a crime just for the purpose of arresting him, and when the methods used by the police are such as to create “a substantial risk that the offense would be committed by a person not otherwise disposed to commit it” (emphasis added). (The New York State Penal Law Section 40.05 defines the affirmative defense of entrapment.) This defense protects people who are not predisposed to committing a crime, but who give in only because of the nature and persistence of police pressure. Just giving a person the opportunity to commit a crime (such as merely asking a person to sell a controlled substance) is not entrapment. Moreover, undercover police are lawfully entitled to lie while acting undercover. So asking, “Are you a cop?” before making a sale of anabolic steroids will not get the case thrown out of court.

What are my chances of going to jail?

A very important question, but one that is impossible to answer without knowing the specifics in a given case. Whether an individual serves any prison time at all depends upon numerous factors including but not limited to the person’s past criminal history, the strength of the prosecution’s case, the person’s role in the offense, the amounts of steroids involved, and how effectively the case is either negotiated or litigated by defense counsel. In our experience, few first-time offenders charged with mere possession for personal use are sentenced to jail in the New York state courts. Sellers are treated more harshly. The Federal Sentencing Guidelines generally mete out stiffer sentences for distributing steroids than would apply in the state courts.

Does the criminal prosecution approach to the anabolic steroid problem work?

It depends whom one asks. Law enforcement authorities and proponents of criminalization contend that stiff penalties help deter trafficking, and that the strict controls associated with controlled substance status prevent pharmaceutical companies from manufacturing more product than could be legitimately used for FDA approved purposes. The Control Act addresses the diversion problem by the triplicate “paper trail” that is associated with controlled substances. But while the paper trail requirements have reduced the amount of legitimate steroids diverted to athletes, they have helped foster a booming counterfeit trade where underground labs make and label steroid products to mimic legitimate pharmaceuticals. These products completely bypass the Control Act’s paper trail. In a 1990 statement to Congress, Department of Justice officials estimated the black market to be a 300 million-dollar per year industry. Today the black market is estimated to be bigger than ever, at more than 400 million dollars in annual retail sales. So much for deterring steroid trafficking.

Protecting young people from danger is a worthy goal of any legislation. But if the true “steroid problem” is adverse health effects, mainly upon young people, the Control Act has been especially dangerous. A primary effect of the Control Act’s restrictions upon legitimate product has been the increased manufacture and distribution of black market counterfeit products and substandardly made veterinary steroids never intended for human consumption. Many of these black market products are tainted with impurities. It has been estimated that up to 90% of black market anabolic steroids are contaminated or contain other foreign substances. It is therefore evident that enforcement of the Control Act has greatly exacerbated the health risks associated with steroid use.

Another dangerous effect of the criminalization approach has been to discourage athletes, especially teens, from admitting their steroid usage to physicians. Since the greatest dangers inherent in self-administered steroid use involve the failure to be monitored by a doctor (see the Health Risk section of my web site), the Control Act has succeeded in greatly escalating this danger and has created an even wider gap between the athletes and the medical community. Because the self-administration of anabolics is a federal crime, few users are willing to confess their steroid use to physicians. And because federal enforcement efforts have targeted physicians, few doctors want anything to do with athletes taking steroids. Doctors caught distributing steroids to athletes have been criminally prosecuted. The end result is that the athletes using steroids rarely get regular blood pressure checks, cholesterol readings, prostate exams and liver enzyme tests, making steroid use far more hazardous than it would otherwise be.

Issues of cheating, “hollow victories,” “winning at any cost,” etc., are another ideological foundation for the Control Act. Allowing those with an unfair advantage to compete can pressure drug-free athletes to use anabolic steroids to remain competitive.But the Control Act has been of extremely limited value in addressing this “cheating” problem. Elite athletes are almost never prosecuted under the Control Act, obtaining their steroid supplies through sophisticated channels that avoid detection by law enforcement. The extremely remote possibility of criminal prosecution deters few if any Olympic and professional level athletes. The most effective way to eradicate anabolic steroids from competitive sports is through systematic drug testing. Athletes who fail the steroid test are prohibited from competing. While testing for anabolic steroids is not perfect, it does remove identified steroid-users from the sport and also serves as the most effective deterrent today. Serious athletes devote huge amounts of time, energy and resources into training for an event. The effect of drug testing – preventing steroid-using athletes from competing – is both a more effective and more appropriate deterrent than the Control Act’s threat of making overly ambitious athletes into convicted felons.

Another problem with the Control Act is the effect of criminalizing our young people. The student caught with steroids will be forever a felon. While anti-steroid experts try to minimize the real life effects of criminalization upon our young adults, we lawyers see it firsthand. For those unfortunate enough to be caught, the effects of prosecution can be devastating. This is especially true since most adult steroid users lead otherwise responsible, law-abiding lives. To offer a personal example, I am currently representing a man who was “set up” by his former training partner to sell to him a bottle of testosterone. The transaction was orchestrated by the narcotics bureau of the county police department at the taxpayers’ expense. The deal was arranged to take place in a parking lot, and immediately after the transfer, a squad of law enforcement agents surrounded my client with guns drawn and handcuffed him. As my client, a gainfully employed and respectful young man, now faces a felony conviction and jail time, the question is raised whether such police operations really reflect a sensible approach to the problem and further whether they are a prudent or appropriate use of our government’s resources. The irreparable harms caused by the Control Act and similar laws may well outweigh the health risks associated with steroid use by most young adults.

Finally, commentators from both the legal and medical communities have noted an interesting cultural irony in the comparison of anabolic steroid administration to cosmetic surgery procedures. In a society preoccupied with physical appearance, confidence and self-image are often intertwined with body shape and condition. Under the current views and laws of our society, it is criminal for a physician to administer anabolic steroids to a healthy adult for purposes of cosmetic physical enhancement. However, it is perfectly acceptable (and quite lucrative) to perform the much more radical and dangerous procedure of surgically implanting foreign prosthetics into virtually all parts of the human anatomy for the same purpose, subjecting patients to the potentially fatal risks associated with general anesthesia and post-surgical infection. Many more people have died or been permanently injured from botched liposuctions and other cosmetic surgery procedures in the past few years than in over forty years of anabolic steroid use by athletes. If one of these alternatives must be illegal, it would seem that the current state of legality regarding these procedures might best be reversed.

For a deeper analysis and evaluation of the Control Act, its problems, and some possible solutions, refer to www.steroidlaw.com. Those with responsible and informed commentary on the content of this article should feel free to contact me by e-mail.

Rick Collins, attorney at Collins, McDonald & Gann specializing in steroid law and dietary supplement law

DISCLAIMER: This material is for general informational purposes only, consistent with the legal profession’s obligation to educate the public, and should not be relied upon as legal advice. For advice, consult with a lawyer licensed to practice in your jurisdiction. Nothing in this material should be construed as intending to promote or encourage the illegal non-medical use of anabolic steroids.